Domtar decision lesson in appeals

The Environmental Appeal Board's ruling this week in the Domtar Pulp and Paper controversy is a clinic on the appeal process.

The board refused to grant standing to the Shuswap-Thompson Organic Producers Association to challenge an environmental permit grant to Domtar last fall that grants an extension on meeting emissions requirements, and allows changes to the mill's stack system.

STOPA argued in a number of different ways that the permit paves the way for adverse environmental and health impacts, but was shut down before it even got to a hearing.

Why? Because STOPA does not qualify as "a person aggrieved," a pre-requisite for being allowed to appeal.

It may seem to the average person that anyone should be allowed to appeal an environmental permit if he or she feels risks to the public are created by that approval, but that's not the way the system works.

Domtar argued strongly against allowing the appeal, based partly on the "person aggrieved" acid test. The appeal board notes in its decision that "Domtar argues that the Board has previously recognized that proximity between a person's residence and the point of discharge is not, of itself, conclusive of whether that person's interests are prejudicially affected, nor is it sufficient for a person to express general concerns about the environment."

Domtar further argued that STOPA failed to show what negative effects, if any, the changes to mill emissions would have on any of its members.

In other words, just anybody can't challenge an environmental permit. You have to prove, before the board spends taxpayers' money, and the proponent does likewise, holding a full-blown appeal hearing, that you are directly impacted.

STOPA, ruled the board, provided "insufficient evidence or information" to indicate "that their interests are or may be prejudicially affected by the decision they seek to appeal."

What are the criteria for reaching that conclusion? According to the ruling, the appellant must show negative effect on his livelihood or his health, or that of his family.

Put bluntly: "The mill has operated in the Kamloops valley for decades, and there is insufficient information to conclude that the mill's emissions have or will impact air quality to such an extent that consumers of organic produce are likely to be deterred from purchasing goods from STOPA members as a result of the amended permit."

You not only have to demonstrate a negative impact on yourself, but you have to come up with some specifics about how a particular project will do that via the technology and the operation of that technology. Inflated claims won't do.

Domtar successfully argued that "the information (in STOPA's appeal) is a mix of general environmental concerns that are too remote or speculative; irrelevant information; and, unsupportable contentions mixed with hyperbole and misstatements or mischaracterizations of facts."

Like it or not, that's the way it is with environmental appeals.

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